Contesting a Will

Discussion in 'Wills & Estate Planning' started by skater, 21st Jun, 2018.

Join Australia's most dynamic and respected property investment community
Tags:
  1. KayTea

    KayTea Well-Known Member

    Joined:
    10th Aug, 2015
    Posts:
    1,204
    Location:
    Inside my head
    After reading this whole thread, and going through a number of family law events myself, I'm left wondering what the point of legal documents, such as Wills, actually is.

    If the deceased's last wishes can't be respected or enforced, and can be contested and overturned for no other reason than the person being left out feels as though they are being hard done-by, then having a Will is pointless.
     
    Blueskies, Propertunity, MWI and 2 others like this.
  2. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,792
    Location:
    Perth, WA
    Except that's not the grounds to challenge a will - there are only a few specific grounds to do so, and most of them have an element of fairness to them.

    Its not just a case of "I'm not happy with being left out".
     
    Perp likes this.
  3. Angel

    Angel Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    5,813
    Location:
    Paradise, Brisbane
    Would you mind please telling us what are these specific grounds?
     
  4. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,672
    Location:
    Australia wide
    You can will leave of the court and this is often given. But the longer they leave it the harder it will be.
     
  5. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,672
    Location:
    Australia wide
    Larry has linked the legislation above for NSW.
     
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,672
    Location:
    Australia wide
  7. SatayKing

    SatayKing Well-Known Member

    Joined:
    20th Sep, 2017
    Posts:
    10,729
    Location:
    Extended Sabatical
    Putting aside the unfortunate circimstances regarding skater, this is good stuff and very informative. Thanks.
     
  8. Propin

    Propin Well-Known Member

    Joined:
    7th Mar, 2016
    Posts:
    3,621
    Location:
    Perth
    Am I reading the legislation right that your personal wealth may work against you on contesting a will? A child that has rented all their life, partied, has little assets as opposed to a child who built wealth?
     
  9. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    13,934
    Location:
    Brisbane
    That can be the case. Google "lame duck in fighting a will" and you'll find a few hits.
     
    Propin likes this.
  10. Foxdan

    Foxdan Well-Known Member

    Joined:
    22nd Jun, 2015
    Posts:
    457
    Location:
    Hills district, sydney
    If you’re wealthy and the person contesting is not as wealthy..... then it’s likely your wealth will work against you. Circumstances of how you gained your wealth and how they gained their “lack of wealth” are irrelevant.
     
    Propin and Terry_w like this.
  11. Perp

    Perp Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    735
    Location:
    Brisbane
    One point that I don't think has been made yet in this thread is that an executor has a fiduciary obligation in performing their duties to maximise the value of the estate.

    So an executor who incurs hefty legal expenses fighting a family provision claim, when it would have been cheaper to settle, may be found to be in violation of their duty as executor, and personally liable for the breach.

    You may not care if you don't get any money from the estate, but I think you'd sure hate it if the relative succeeded in their claim for family provision, and then because there was no money left in the estate due to legal fees, sued for breach of fiduciary duty, and you had to cover the shortfall from your own pocket... :eek:
     
    VanillaSlice, Propin, qak and 3 others like this.
  12. balwoges

    balwoges Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    1,700
    Location:
    Lake Macquarie
    This is why my solicitor advised me to settle a claim stating 'the Judge would take a dim view if I did not', even though I knew [as did the plaintiff's solicitor] I would win.

    I gave claimant $10,000, the estate had to pay $45,000 in legal fees [this was in 2004]... would have been a lot more if I had carried on thereby further diminishing the estate ... :eek:
     
    Last edited: 16th Apr, 2019
    kierank and Perp like this.
  13. skater

    skater Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    10,222
    Location:
    Sydney? Gold Coast?
    Don't panic, it's all done & dusted. Was a tiny amount & the solicitor advised that the costs (for the other person) would be astronomical & she will just back off, which is what happened. Even though, technically, I was the executor, I had no role in the administration at all. It was all handled by the solicitor & didn't even go to probate.
     
    Propin, Angel, Stoffo and 5 others like this.
  14. Westminster

    Westminster Tigress at Tiger Developments Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    11,331
    Location:
    Perth
    Glad it was all sorted in the end.
     
    Perp likes this.
  15. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    23,319
    Location:
    Sydney
    And from that obligation there is a obligation to other beneficiaries to not adversely impact them. It can be a tough journey as trustee
     
    Perp and kierank like this.
  16. larrylarry

    larrylarry Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,386
    Location:
    Sydney
    That’s right especially when beneficiaries raise their competing interests.
     
    Perp likes this.
  17. larrylarry

    larrylarry Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,386
    Location:
    Sydney